Bubis v. Kassin

On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-296-95.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 28, 2008

Before Judges Skillman, Graves and Grall.

This appeal involves the applicability of the public trust doctrine to private oceanfront property the owners maintain exclusively for their own recreational enjoyment. In 1995, defendants Jack and Joyce Kassin bought an oceanfront property in the Village of Loch Arbour that the previous owners had operated as a commercial beach club. This property has approximately 650 feet of frontage along the Atlantic Ocean and is approximately 300 feet in depth, with a total area of slightly less than five acres. The property is occupied by a large gravel parking lot, a substantial structure the Kassins refer to as the cabana building, tiki huts located on the beach, tables, a volleyball court, a children's playground, and other amenities. In the summer, the Kassins employ lifeguards to supervise swimming in the area of the oceanfront designated for this purpose.

The remainder of the oceanfront in Loch Arbour, which has approximately 350 feet of frontage along the Atlantic Ocean, is a public beach owned and operated by the municipality, which has restrooms, changing facilities and a refreshment stand. During the summer season, a beach badge is required to use this facility.

Plaintiff Sophie Bubis is the owner of a single-family residence located directly to the west of the Kassins' property, across a public street called Ocean Place. Mrs. Bubis has engaged in protracted litigation with the Kassins over the last thirteen years with respect to both her right to an ocean view from her residence and her right of access to the beach across the Kassins' property. This litigation has resulted in three published opinions: Bubis v. Kassin, 323 N.J. Super. 601 (App. Div. 1999) (Bubis I); Bubis v. Kassin, 353 N.J. Super. 415 (App. Div. 2002) (Bubis II), and Bubis v. Kassin, 184 N.J. 612 (2005) (Bubis III).

One section of our opinion in Bubis II upheld a trial court order that allowed the Kassins to block Mrs. Bubis' access to the beach across the center of their property along a paper street called Edgemont Avenue, but conditioned that denial upon the Kassins providing alternative public access to the beach. 353 N.J. Super. at 424-26. The Kassins complied with this order by constructing a wooden eight-foot-wide pathway from the street to the beach along the southern boundary of their property.

On June 27, 2004, Mrs. Bubis walked with a beach chair and umbrella from her home to the beach by means of this pathway. She then walked along the beach below the mean high water line to a location in front of one of the Kassins' tiki beach huts and sat down on her beach chair. A lifeguard employed by the Kassins asked her to move but she refused. Mr. Kassin then summoned the police, who also advised Mrs. Bubis that she had to move because "she [was] on private property." However, Mrs. Bubis again refused. The police prepared a complaint and summons for defiant trespass, in violation of N.J.S.A. 2C:18-3(b)(1), which Kassin signed. When the police served the summons, Mrs. Bubis informed them that "she has the right to use the beach at the high water mark according to the Public Trust Act[.]" After some further debate with the police officers, Mrs. Bubis packed her belongings and left the beach.

This incident precipitated a motion by Mrs. Bubis for enforcement of litigant's rights in which she alleged that the Kassins had interfered with her rights under the public trust doctrine and sought to enjoin them "from further interfering with [her] right to obtain access to, walk upon, sit, sunbathe and enjoy recreational activities on any portion of the foreshore including a portion of the dry sand beach area adjacent to the foreshore[.]" Mrs. Bubis also sought removal to the Chancery Division of the municipal court trespass complaint Mr. Kassin had filed against her as well as two municipal court complaints for harassment she had filed against the Kassins.

The trial court granted the part of Mrs. Bubis' motion that sought removal of the municipal court complaints to the Chancery Division, but deferred proceeding on those complaints until after a resolution of her motion for relief in aid of litigants' rights. The court conducted an evidentiary hearing on the motion at which Mrs. Bubis, Mr. Kassin and other witnesses testified. Only a brief summary of the evidence presented at that hearing is required to address the issues presented by this appeal.

Loch Arbour public officials who manage the municipal beach testified that the beach occasionally fills on weekends to a point where the sale of beach badges is suspended. One official estimated that such overcrowding had occurred only twelve times in the previous ten years. These officials also testified that they have an informal arrangement with Mr. Kassin under which he allows patrons of the municipal beach to use an approximately 100 foot section on the northern part of his beach on weekend days when the municipal beach is overcrowded.

The head lifeguard employed by the Kassins testified that he asks any person who places a chair in the sand in front of the Kassins' tiki beach huts to move the chair so as not to obstruct the Kassins' view of the ocean. This apparently was the area where Mrs. Bubis placed her beach chair on the day she was charged with trespass.

Based on this evidence, the trial court issued a lengthy written opinion upholding the Kassins' position that Mrs. Bubis and other members of the public have only a limited right under the public trust doctrine to use the Kassins' private oceanfront property and the adjoining land below the mean high water mark. The court concluded that the Kassins are not obligated to provide any public access to the area of their property above the mean ...

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